Chan Tai Kuen and Another v. The Queen

CACC000386/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 386 OF 1972

-----------------

-----------------

Coram: Rigby, C.J., McMullin, J., Leonard, J.

Date of Judgment: 17th August, 1972.

-----------------

JUDGMENT

-----------------

Rigby, C.J.

1. The two appellants, who are both aged 24, were both indicted upon three separate charges of robbery committed respectively on the 3rd of March, the 4th of February and the 13th of February. For reasons which are strictly irrelevant to these proceedings they were acquitted on the 1st and 3rd charges but were convicted upon the 2nd charge. Upon conviction the 1st appellant was sentenced to 21 months' imprisonment and the 2nd appellant to 2 years' imprisonment. They now apply for leave to appeal: the1st against sentence only and the 2nd against his conviction.

2. Dealing first with the appeal of the 2nd appellant against his conviction, Mr. Lawrence Leong has pointed out that an application might have been made in the circumstances for separate trials in respect of the separate offences. That, indeed, is true, and it may well be that it would have been better, and perhaps fairer, if there had been separate trials. But Mr. Leong's client was legally represented in the lower court and no such application was made. It is, of course, clear that it was well within the jurisdiction of the learned trial judge to deal with all three charges together.

3. The actual facts relating to the charge upon which both appellants were convicted were in respect of an offence which occurred on the 4th of February. On that day it would appear that two youths entered the 4th floor premises at Star House, Salisbury Road, Kowloon. Those premises were used as an office by what appears to have been a Japanese firm. At the time they were occupied by men, two of whom were Japanese and two were Chinese. According to the evidence given by all those four men at the trial, these two youths, who were unmasked, approached them; the first youth had a chopper in his hand and threatened one or more of them, and they were compelled to hand over the monies and the watches in their possession.

4. The two youths were subsequently arrested and appeared at an identification parade on the 6th of March. There were some 16 persons on that parade, all of whom were similarly dressed. The parade included both the appellants. The 2nd appellant was identified by a Chinese male named YUEN Wai-man who was in the officer at the time. YUEN Wai-man identified both the 1st and 2nd appellants apparently without any difficulty. The 2nd appellant was also positively identified at the parade by one of the Japanese males.

5. When the case came for trial before the learned judge on the 3rd of May, the 2nd appellant was again identified by YUEN Wai-man. The Japanese who had identified him at the parade said at the trial he was not in fact sure, having regard to the passage of time, whether the 2nd appellant was in fact one of the two youths who had carried out this robbery. The learned trial judge, having heard the evidence of the Chinese who positively identified the appellant at the parade and again at the trial, appears to have been conclusively satisfied with that identification.

6. It ...(illegible) against the 2nd appellant. ...(illegible) given by YUEN Wai man at the trial - and we have considered it and looked at it - was sufficient to satisfy the learned trial judge beyond any reasonable doubt as to the accuracy of the identification. In our view there was clearly evidence which, if believed, was sufficient to support the conviction of the 2nd appellant, and his application for leave to appeal against conviction is accordingly dismissed.

7. As regards the appeal against sentence by the 1st appellant this was a robbery carried out in broad daylight by those two youths one of whom was armed with a chopper and threatened the occupants of these premises. It is an offence which is unfortunately prevalent in Hong Kong at the time. It is true that the appellant had no previous convictions. That was a matter which the learned trial judge clearly took into consideration. We consider there are no grounds to interfere with the sentence imposed - indeed, on either of the appellants - and the application by the 1st appellant for leave to appeal against sentence is accordingly dismissed.

Representation:

1st Appellant in person.

Le. Leong (Sousae & Co.) for 2nd Appellant.

Stape, C.C. for Crown/Respondent.

(Judgment delivered by President)